~ A Journal of Democracy and Public Affairs

Snowden vs. Epstein

Who will you believe: Edward Snowden, Laura Poitras, and Glenn Greenwald, or NSA and the United States government? That is the fundamental question underneath Edward Jay Epstein’s recent article in the Wall Street Journal, “The Fable of Edward Snowden”. You can tell from Epstein’s title which side of this question he takes.

For some reason, the Wall Street Journal decided to give extra exposure to Epstein and his book about Snowden, How America Lost Its Secrets: Edward Snowden, the Man and the Theft. It even arranged an interview with Mary Kissel, the Journal‘s untiring answer to MSNBC’s Rachel Maddow. Kissel opens with this question: should President Obama pardon Edward Snowden? When you try to stir interest with a question that has almost nothing to do with the interview’s main subject, you know you’re off to a bad start.

Early in the Kissel-Epstein love fest, they both refer to Snowden’s theft of government secrets. They want to frame his action emphatically, for if Snowden stole information, he is a spy. If he is a spy, he has lied about his dealings with the Russians, and he is a traitor. If he is all of those things – a thief, a spy, a liar and a traitor – we should certainly not let him back into the country for any other purpose than to stand trial.

So let’s consider this premise, that Snowden stole information from the United States government. The concept of theft applies to this case only if the United States government owns the information. That’s not possible, though, since we own it. We paid for it. We did not give it to the government for safe keeping. We did not transfer ownership as part of any sort of contract. Try to spin a legal theory whereby Snowden took something that did not belong to the people who paid for it, and you come up empty.

If I reveal a fraudulent business operation, where someone distributes suitcases full of counterfeit one hundred dollar bills, would you call me a thief or a spy? Of course not. You would initiate legal proceedings against the counterfeiter.

Of course Epstein will say that ownership is not the issue here: what matters here is secrecy. Government has to manage state secrets, just as it has to manage nuclear weapons. By this reasoning, if you remove a nuclear warhead from an ICBM in its silo, you have stolen it. Similarly, if you remove state secrets from a computer system and publicize them, you have stolen the secrets. This argument is groundless, however, since we have granted government exclusive access to weapons of mass destruction. We have not granted government a similar right of exclusive access to information, certainly not information that pertains to ourselves.

In fact, the information Snowden revealed pertains not only to citizens, but also to extensive, illegal surveillance programs used to collect personal records government has no authority hold. Compare this illegal behavior with another type of crime. If I reveal a fraudulent business operation, where someone distributes suitcases full of counterfeit one-hundred dollar bills, would you call me a thief? Of course not. You would charge me with a crime and prepare an indictment.

As we have learned, though, prosecutors do not like to charge high ranking officials with crimes they commit while they perform their jobs. Moreover, they say the crimes are not crimes. James “Not Wittingly” Clapper claims everything NSA does is legal, because a secret court that authorizes intelligence activities approves its programs. Besides, how can a national security agency commit crimes, when its whole purpose is to protect us?

Significantly, charges of treason against Snowden originate almost entirely within the government.

By this logic, Edward Snowden must be a spy, because he was not actually a member of NSA. He came in as a contractor to steal what belonged to the agency. Under this narrative, he used his access to state secrets to betray his government, and his country. Then he fled, first to Hong Kong and then to the Russians. For Epstein’s purposes, one could not ask for a better prima facie case against a traitor.

Significantly, charges of treason against Snowden originate almost entirely within the government. Mainstream media, as well as writers like Epstein, report the charges as if they have substance. Snowden counters these charges with a reminder that government cannot use its authority to conceal information about illegal activities. That is, it cannot use treason as a cover to protect itself. “If I am traitor, who did I betray? I gave all my information to the American public, to American journalists who are reporting on American issues. If they see that as treason, I think people really need to consider who they think they’re working for. The public is supposed to be their boss, not their enemy.”

Edward Epstein wittingly makes a case for Not Wittingly. Not Wittingly – and the president, for that matter – see unrestricted data collection as pivotal for national security. Yet unrestricted data collection violates the Fourth Amendment, which explicitly rules out exactly that activity. A young, intelligent computer technologist, with his whole life to lose, had guts to say, “Here’s what’s going on. Government engages in far more surveillance than you might have guessed.”

Snowden knew government would go nuts in response. That response, from the moment it began, proved Snowden right. You could see from government’s panicked, hyperactive reaction that Snowden told the truth. In so doing he returned the public’s property to the public. Government will never forgive him. On the other side of the great divide between government and public, Snowden acted as our champion and advocate. The more government calls him a traitor, the more we should appreciate his competence and courage, the more thankful we ought to be for what he accomplished.

Snowden knew government would go nuts in response. That response, from the moment it began, proved Snowden right.

Let’s introduce several more characters in Epstein’s drama: Oliver Stone, Laura Poitras, Glenn Greenwald, Ewen MacAskill, and Sarah Harrison. Epstein suggests that our knowledge of Snowden’s story comes from several sources, including Stone’s film, Snowden. People understand, however, that Snowden is a fictional version of Snowden’s career. Laura Poitras recorded what actually happened in 2013 in her film CitizenFour, a remarkable documentary that you must see if you have not already. This film captures the significance of Snowden’s accomplishment, and the drama of his meetings with Poitras, Greenwald, and MacAskill in Hong Kong. This documentary reminds you the camera does not lie.

The last individual, WikiLeaks’ Sarah Harrison, helped Snowden escape the long arm of the U. S. surveillance and security state. She flew with him from Hong Kong to Moscow. For Epstein, all the people who helped Snowden are co-conspirators, equally traitorous and untrustworthy. Therefore no source close to Snowden can tell his story satisfactorily. The only people who can tell his story, Epstein maintains, are the people inside government who want to shut him up. They want to shut Snowden up in two senses: put him deep in a federal maximum security facility, and make sure no more of the information he gave to Greenwald and Poitras ever becomes public.

Are Poitras and Greenwald liars and traitors because they helped Snowden? Clearly, the people who awarded Poitras an academy award and the George Polk Award in Journalism for CitizenFour do not agree with Epstein. The Guardian, recipient of a Pulitzer prize for its articles by Glenn Greenwald, would also disagree with Epstein’s assessment. Add the people who nominated Edward Snowden for the Nobel Peace Prize, as well as all the other prizes and recognition Snowden has won.

No one interested in Snowden’s personal safety seeks a presidential pardon for him. Snowden knows that if he returns to the United States, under protection of a pardon or any other circumstance, something bad will happen to him.

So why did the Wall Street Journal sign on to a hit piece by someone who agrees with James Clapper and the rest of Snowden’s enemies? Why did they cast their lot with the surveillance state? Simply publishing an article does not align the Journal with its author’s positions, of course, but the Mary Kissel interview takes the public relations process another significant step. If you follow her work, you know the Journal uses her interviews to promote material it wants to bring to readers’ attention. That’s why she interviews Journal editor Paul Gigot, as well as other columnists, every week.

I cannot say why the Journal would make a mistake about the Snowden story at this point, except that Epstein’s book about Snowden comes out this month. The Journal has not been particularly friendly to the NSA in the past, and it has generally been a voice for civil liberties. It does not seem to practice the chameleon-like journalism the New York Times is famous for. Yet it promotes Epstein’s work, endorses it, and reopens the case against Snowden because, according to Kissel, Snowden wants a pardon from Obama before the president leaves office. No one interested in Snowden’s personal safety seeks a presidential pardon for him. Snowden knows that if he returns to the United States, under protection of a pardon or any other circumstance, something bad will happen to him.

Poitras and Greenwald, as prominent journalists, are the Emile Zola’s of our era. Zola wrote J’Accuse…!, an open letter to France’s president about Alfred Dreyfus, falsely accused of treason and sent to Devil’s Island on a life sentence. Zola went to trial for publication of the letter, and was forced into exile in London for his trouble. The United States government has forced Poitras into exile in Berlin for hers. Greenwald writes from Brazil. They both travel and work more freely because they do not live in the United States.

Snowden’s case symbolizes this question: “Are you loyal to the United States Constitution, or to the United States government?” The two are not the same, and in fact Snowden’s documents show how the United States government made itself the Constitution’s enemy.

Why the comparison to Zola? Alfred Dreyfus’s case in the 1890s became the litmus test for the question, “Are you loyal to the French Republic, or to the French Army?” Similarly, Snowden has become the symbol for a parallel question: “Are you loyal to the United States Constitution, or to the United States government?” The two are not the same, and in fact Snowden’s documents show how the United States government made itself the Constitution’s enemy.

When Greenwald’s first articles about Snowden’s documents appeared, the United States government immediately demonstrated its grasp of this conflict – and its significance – when it charged Edward Snowden with espionage. It rallied its national security doctrines, apologists and machinery to proclaim, “It’s us or our enemies.” Enemies means people who care about the Constitution. Its leaders recognized the surveillance state would have to defeat Snowden’s ideas – his ideal of a free state – as well as his credibility in order to survive.

Over nearly four years, the United States government has gradually lost ground. Now Epstein and the Journal step up to say, “Let’s stop this retreat. We ought to strengthen our case against traitors who lie.” Epstein and the Journal deserve to lose the fight they have picked. When they open their indictment with the word “theft”, which confirms their view of Snowden as a liar and spy, they declare their contempt for our Constitution. They support the structure of falsehood and illegality endorsed by Mr. Clapper and his friends at NSA.

This interview from the Wall Street Journal illustrates how closely Edward Snowden’s story parallels that of Alfred Dreyfus in France 120 years ago. It is the Affair of our time, except that the central figure is exiled, rather than in prison.

One hundred twenty years from now, the people who condemn Snowden so confidently will stand discredited, in the same way that Dreyfus’s accusers stand discredited now.